Kidnapping During a Carjacking – California Penal Code 209.5
The crime of kidnapping is generally described as taking and moving another person against their will using force or fear. In the state of California, there are different types of kidnapping charges that are considered more serious than others, such as aggravated kidnapping.
The general statute for kidnapping charges are defined under California Penal Code 207. Aggravated kidnapping charges is defined under Penal Code 209 and will be charged under specific circumstances and carries severe penalties. Carjacking charges are defined under Penal Code 215.
The prosecutor could use the PC 209 aggravated kidnapping statute in a situation where a kidnapping begins with a carjacking, ransom or reward, leads to a sexual related crime, or if it causes bodily harm or death to the victim.
California Penal Code 209.5 defines the crime of kidnapping in the commission of carjacking. It’s a type of aggravated kidnapping and a conviction can lead to a sentence of life in a state prison.
The prosecutor can file PC 209.5 kidnapping during carjacking charges if you move the victim a substantial distance past a point incidental to the carjacking, and your actions increased the risk of harm necessary for the carjacking.
For example, let’s say a person is waiting in a shopping mall parking lot looking for someone to return to their vehicle. When they approach their car and start to open the door, they sneak up from behind, grab the victim, and force them inside the vehicle using threats of violence.
After they are inside the car, they make the decision to take the owner with them even though the owner is attempting to exit the car. The tell the car owner they will hurt them unless they cooperate and then drive away from the parking lot.
In this example, they could face charges under California Penal Code 209.5, kidnapping during carjacking.
To give readers some more useful information about the violent crime of kidnapping during carjacking laws described under Penal Code 209.5, our California criminal defense attorneys are providing an outline below.
PC 209.5 Kidnapping During Carjacking Definition
California Penal Code 209.5 defines kidnapping during carjacking as:
Any person who, during committing a carjacking, kidnaps a person and the movement of the victim is beyond incidental to committing the carjacking, and they are moved a substantial distance from the scene, and the movement increased the risk of harm above what was necessarily present in the crime of carjacking itself.
California kidnapping laws are based upon moving a person against their will using force or fear.
Penal Code 209 aggravated kidnapping is not only moving someone a substantial distance, it requires the movement to significantly substantially increase the risk of harm above and beyond the inherent underlying crime of carjacking.
To be convicted of PC 209.5 kidnapping during carjacking, the prosecutor has to prove all the “elements of the crimes” beyond a reasonable doubt. These elements are listed under CALCRIM 1204 Criminal Jury Instructions:
- Defendant committed a carjacking offense
- During the carjacking, defendant detained victim using force or fear
- Defendant moved victim a substantial distance from the carjacking scene
- Defendant moved the victim with intent to facilitate carjacking, help their escape, or prevented victim from sounding an alarm
- Defendant did not give consent to be moved
It needs to be noted that a carjacking offense can also occur where defendant only forced the victim the give them their car keys, even if they don’t move the vehicle.
What are the Penalties for Penal Code 209.5?
If convicted of kidnapping during carjacking, the penalties could include a sentence of life in prison with the possibility of parole. Also, Penal Code 209.5 is a violent felony crime in California and it will be considered a “strike” under the three strikes law.
This means a defendant will be required to serve at least 85% of their sentence before being considered eligible for parole.
There is also a chance to face additional penalties depending on the circumstances of the case, including certain sentencing enhancements.
For instance, if there was a violation of California Penal Code 12022.53, the “10-20-life” use a gun and you’re done'” law, the defendant can face 10 years in a prison for using a gun, 25 years if the gun was discharged, and 25 years to life if defendant caused a victim serious injury or death with the gun.
If a prosecutor can prove the kidnapping during carjacking case was for the benefit of a gang, a defendant could face more time in a state prison for a criminal street gang enhancement described under California Penal Code 186.22.
If victim suffered a great bodily injury (GBI) during the kidnapping during carjacking incident, a defendant could face more time in prison for a great bodily injury enhancement described under California Penal Code 12022.7.
How Can You Fight Kidnapping During Carjacking Charges?
If you are charged with kidnapping during carjacking in violation of California Penal Code 209.5, our Los Angeles criminal attorneys could use various defense strategies in order to achieve a favorable outcome. We need to review all the facts and circumstances of the case in order to start preparing a plan to fight the case.
It’s crucial to make note that early intervention into your case by our attorneys can make a huge difference on the resolution of the case. Through prefiling intervention, we might be able to negotiate with the prosecutor to avoid the formal filing of charges and get the case dropped.
Our defense lawyers will closely examine the details and evidence to form a strategy to obtain best possible outcome. Common defenses for PC 209.5 kidnapping during carjacking charge include:
- No force or fear was used
- You didn’t participate in the carjacking
- Victim consented to be moved to another location
- False accusation
- Insufficient evidence
- Mistaken identity
It should be noted that if you are in a situation where the prosecutor has solid evidence to obtain a conviction, our lawyers might be able to negotiate with the prosecutor for a more favorable plea bargain, such as reducing the charges to lesser offense.
Cron, Israels & Stark is a criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We have another office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Contact us for a free case consultation at (424) 372-3112.